Error and/or relief
We reverse and vacate the true findings on the gang murder special circumstances for counts 1 and 4. We also reverse and vacate the true findings on the gang enhancements for counts 1, 2, and 4. We remand the matter to the trial court to allow the District Attorney to retry the gang murder special circumstance and the gang enhancement for count 4 under the current version of the laws as amended by AB No. 333. Principles of double jeopardy preclude retrial as to the gang murder special circumstance for count 1 and the gang enhancement for counts 1 and 2.
First Holding:
Effective January 1, 2022, AB 333 amended section 186.22. The amendment narrowed the definition of a criminal street gang as used for the gang enhancement in section 186.22(b) and the gang murder special circumstance in section 190.2(a)(22). It changed the definition to an ongoing, organized association or group of three or more persons whose members collectively engage in, or have engaged in, a pattern of criminal gang activity, rather than individually or collectively engage in a pattern of criminal gang activity under the former version of section 186.22. A pattern of criminal activity under former section 186.22(e) required two or more predicate offenses committed on separate occasions or by evidence of such offenses committed by two or more persons on the same occasion.
The amendment changed the requirements of a pattern of criminal activity in four ways. First, a pattern of criminal activity now requires the predicate offenses to be separate from the currently charged offense or offenses. Second, the last predicate offense must have occurred within three years of the commission of the currently charged offense. Third, it requires that the predicate offenses were committed by two or more gang members, as opposed to persons. Fourth, the predicate offenses must have commonly benefited a criminal street gang. AB 333 narrowed the common benefit for the gang by the commission of an offense to be more than reputational. The prosecution must show how the predicate offenses provided an actual common benefit to the gang, and that they did not merely enhance the reputation of its individual members.
Authority:
PEN 186.22(g)
People v. Cooper (2023) 14 Cal.5th 735, 738
People v. Hin (2025) 17 Cal.5th 401, 460-461
People v. Tran (2022) 13 Cal.5th 1169, 1206
People v. Lamb (2024) 16 Cal.5th 400, 450
Second Holding:
AB 333 applies retroactively to nonfinal judgments as we have here. The instructions read to the defendant’s jury preceded the effective date of AB 333 and his appeal was pending on that effective date. The new requirements in section 186.22 apply retroactively to his case on appeal.
Authority:
People v. Lopez (2025) 17 Cal.5th 388, 396
In re Estrada (1965) 63 Cal.2d 740, 745
People v. Cooper (2023) 14 Cal.5th 735, 738-739
Third Holding:
We must reverse the gang enhancements and the gang murder special circumstance if any rational fact finder could have come to the opposite conclusion regarding the new requirements of AB 333.
Authority:
People v. Hin (2025) 17 Cal.5th 401, 462
People v. Cooper (2023) 14 Cal.5th 735, 739
People v. Lamb (2024) 16 Cal.5th 400, 453
Fourth Holding:
The double jeopardy clause of the federal constitution’s Fifth Amendment provides that no person may be subject for the same offense to be twice put in jeopardy of life or limb. The state constitution provides the same protection. A defendant may not be tried a second time for the same offense if the conviction is set aside for insufficiency of the evidence. Our conclusion that the gang special circumstance and the gang allegation were unsupported by sufficient evidence bars retrial.
Authority:
Cal. Const., art. I, sec. 15
People v. Hin (2025) 17 Cal.5th 401, 454-455, 468